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COUNTING THE CLERKS Five years after the lack of diversity among the Supreme Court’s law clerks became an issue, diversity seems to have taken hold and become more commonplace in their ranks � and not just racial and gender diversity. A survey of this term’s 35 law clerks reveals that more and more of the clerks are from non-Ivy League schools, and, like last year, a growing number have not taken the traditional path to the Court � arriving directly from an appeals court clerkship. Fully 19 of the clerks ended their lower court clerkships a year or more ago, and a different 19 graduated from non-Ivy League law schools. The University of California Boalt Hall School of Law is the alma mater of four clerks, and the University of Texas sent two of its own to the high court. The law schools at Notre Dame, Ohio State, and Brigham Young are also represented. “Four is a record for us,” says former Boalt Hall Dean Jesse Choper, who applauded the Court for expanding its horizons beyond Ivys Harvard, Yale, and Columbia as well as non-Ivy elite schools like Stanford, which sent three alumni to the Court this term. “We don’t do as well as we should. The students we turn out are as good as they get.” Harvard and Yale law schools continue to dominate (seven and eight clerks, respectively) as do white males (16, including all four of Justice Antonin Scalia’s clerks). Nonetheless, says Debra Strauss, an adjunct professor at Pace University School of Law, “we are beginning to get a more realistic reflection of the general population” in the clerks. Strauss is author of Behind the Bench, the leading guidebook on judicial clerkships, and was the project director for a national study of clerkships. The Court does not keep or release demographic information on the clerks and does not assist in the tally. But based on publicly available information and observation, it appears that eight of the clerks, or 23 percent, are minority members � down from last term’s record high number of nine. The two African-American clerks this term are Leondra Kruger, working for Justice John Paul Stevens, and Bertrand-Marc Allen, in Justice Anthony Kennedy’s chambers. Both are from Yale Law School. The six Asian-American clerks, followed by the justices they work for, are Sambhav Sankar (Sandra Day O’Connor); Chi Kwok (Kennedy); Jeannie Suk (David Souter); Aziz Huq (Ruth Bader Ginsburg); and Pratik Shah and Davis Wang (Stephen Breyer). There appear to be no Hispanic or Native American law clerks. As for those clerks who have not come directly from appeals court clerkships, at least two have been teaching law most recently. Orin Kerr, whose appeals court clerkship ended in 1998, went from George Washington University Law School to Kennedy’s chambers. Ginsburg clerk Abbe Gluck was most recently a visiting professor at Brooklyn Law School. Breyer clerk Ariela Migdal, who campaigned for her father-in-law, Joseph Lieberman, in the 2000 election, has been working as a public defender in Israel, according to Harvard Magazine. Another Breyer clerk, Shah, was an associate at Munger, Tolles & Olson, where he co-wrote an amicus curiae brief in last term’s Gratz v. Bollinger affirmative action case on the side of the University of Michigan. Last term’s Michigan cases have highlighted one aspect of the debate over diversity among the law clerks � whether it affects the Court’s jurisprudence. In concrete terms, the question might be, Is there any correlation between these two facts about last term: the Court upheld law school affirmative action policies, and a record number of Supreme Court law clerks were minorities? Of the nine minority law clerks last term, seven were on the staff of the five justices who voted in the majority in Grutter to uphold law school affirmative action. In that majority ruling, Justice O’Connor did not mention law clerks but she did note other doors that open for law school graduates. “[U]niversities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders,” O’Connor wrote. “Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. . . . The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.” Pace’s Strauss was probably the first to draw a possible connection between the cases and the Court’s own hiring practices, even before the decision came down. In a column on the Jurist Web site last April, Strauss asked rhetorically, “What would happen if, in the wake of the Michigan admissions cases, affirmative action were downplayed or even deplored? Would the latest gains in the diversity of the Court’s law clerk staff become just so much legal history? Or would the Court simply continue its present hiring policy? As the justices begin to deliberate on the Michigan cases they might bear in mind that what they do may come to haunt � or help � themselves.” Now that the Grutter decision has come down, Strauss thinks it would be hard to draw any direct connection between the diversity of the clerks and the outcome. “The most you could suggest is that it is a positive thing to have a higher number of minority law clerks,” she says. “I hope the justices are looking at the world differently” as a result. But she also adds that since it now appears from public comments and the like that the justices seek and approve of greater diversity among their clerks, the clerk hiring issue may have had a subtle or indirect impact on their deliberations. “If they had ruled differently, they might have put themselves in a quandary,” she says. “How could they have reconciled the ruling with their own hiring policies?” A ruling that struck down the University of Michigan’s law school policy could, over the long term, have reduced the number of minorities available to clerk at the Supreme Court, she notes. “If they truly do take race into account in their own hiring, could they have continued to do so” if they had struck down Michigan’s program? Strauss asks. Artemus Ward, who is working on a book on high court law clerks, agrees that “the connection may be more general” between the decision and the Court’s clerk hiring policies. “As the justices have come under increasing scrutiny and criticism in recent years for their law clerk hiring practices, they have obviously made an effort to increase the number of minority clerks,’ says Ward, an assistant professor of political science at Northern Illinois University. “It is not too far of a leap for justices who believe that diversity in higher education is a good thing to come to see how diversity in their own clerking corps could be of benefit.” Ward, whose book on the politics of Supreme Court retirements, Deciding to Leave, came out earlier this year, says the presence of a diverse class of clerks may have contributed to the Court’s internal dialogue. “Though I think it would not be commonplace, it is also very possible that minority law clerks might bring their personal experience into a discussion with their justice � particularly on an affirmative action case.” KENNEDY ON LEGAL EDUCATION In any discussion of the law clerk issue, the student loan debt burden of potential law clerks is a significant factor. Almost by accident, Justice Anthony Kennedy this summer gained more expertise on the subject. At last April’s Supreme Court budget hearing before a House subcommittee, Kennedy lamented the high cost of legal education and said it was a major reason behind the Court’s historically low number of minority law clerks. When a congressman suggested, in reply, that the Court should look into loan repayment programs like those that have been developed by other agencies and law schools to encourage lawyers to go into public service, Kennedy exclaimed, “This is a revelation.” He had never heard of the idea before. Soon after reading Kennedy’s comment, leaders of the American Bar Association Commission on Loan Repayment and Forgiveness contacted Kennedy to apprise him of what is being done � and what more should be done. The commission, created in 2001 at the initiative of then-ABA President Robert Hirshon, was finalizing its report on the extent to which law school debt discourages new lawyers from public service careers. With many law students accumulating $80,000 or more in debt by the time they graduate, the commission found that public interest jobs, with a median annual income of $36,000, often lose out to private law firm positions, where the median annual income is $90,000. Kennedy expressed “energetic support for the issue” when contacted, according to commission Chairman Curtis Caton of the San Francisco firm Heller Ehrman White & McAuliffe. As a way of giving it higher profile, Kennedy agreed to be on hand when the commission released its final report at the ABA’s annual meeting in San Francisco. Kennedy was at the convention anyway to give the keynote address. Speaking at the unveiling of the report, Kennedy emphasized “the duty of the profession to make public service professions economically viable,” recalls Caton. Kennedy did not discuss Supreme Court clerkships specifically in this context, Caton says, but agreed the issue is basic to the profession. “Ultimately, it’s an access to justice issue,” adds Caton. “If there are not enough lawyers to meet the needs of people, their needs are simply going to go unanswered.” Kennedy also offered an intriguing observation about legal education in general, according to those who heard him speak. Reflecting on his travels and study of other legal systems around the world, Kennedy said the United States was in the “distinct minority” of nations that require such extensive, high-cost graduate education for those seeking to become lawyers. The time has come, Kennedy indicated, for the profession to think about alternative methods of delivering legal services. MRS. MALAPROP RETURNS Well, it happened again. For the second time this term, a lawyer appearing before the Court addressed Justice Ruth Bader Ginsburg as “Justice O’Connor.” The victim of this peculiar affliction on Oct. 14 was Jeffrey Lamken, an assistant to the solicitor general who, it might be said, should know better: He clerked for Sandra Day O’Connor 11 years ago. The mishap occurred as Lamken argued on behalf of the government in Barnhart v. Thomas, No. 02-763. As nervous laughter grew in the courtroom, Ginsburg smiled and said to Lamken, “I’m Justice Ginsburg.” Lamken, looking shocked, apologized. He declined comment afterward. But Lamken should not worry; he is in good company. Six days earlier, veteran advocate Carter Phillips of Sidley Austin Brown & Wood made the same misstep, following the example of the likes of such notable advocates as Walter Dellinger, Laurence Tribe, and the late Bruce Ennis Jr. Lamken is not even the first former O’Connor clerk to make the mistake. Former Justice Department official Viet Dinh did it not that long ago when he argued a case at the Court. So why is the mistake so persistent? Only very rarely do advocates confuse the male justices by name. One prevalent, though shaky, theory is that O’Connor, the swing vote on the Court more often than not, is front and center in the minds of advocates, so her name is more likely to slip off the tongue of a lawyer who is looking at the Court’s only other female justice. Dinh subscribes to an extreme version of that possible reason: “I have no explanation except that, in my case, I was so focused on persuading her that I would have called Scalia O’Connor!” Whatever the reason, the mixup seems to make an impression. When Justices O’Connor and Ginsburg appeared together on Oct. 23 before the Philadelphia Bar Association, Ginsburg in her remarks spoke of milestones yet to be achieved by women in the legal profession. Offered whimsically, she said one of her aspirations was this: “Perhaps some year soon, all lawyers who appear before the Supreme Court will fully comprehend that there are two of us, and will stop calling me ‘Justice O’Connor.’ “ Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. He can be reached at [email protected].

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